The Czech collective OSA was one of the addressees of the judgment.
The CISAC was founded under French law as a non-governmental, non-profit organization having legal personality. One of its primary aims is to support mutual representation between collective copyright managers all over the world. Collective copyright managers are in charge of managing copyrights acquired directly from artists, or indirectly from other parties, and are responsible for granting licenses to commercial users.
The case concerned model agreements drafted by the CISAC on mutual representation between its members. The drafts were non-binding models for agreements entered into by and between the collective copyright managers, under which licenses were granted for concerts and other events. The mechanism worked as follows: one collective copyright manager agrees to transfer the rights applicable to “its” repertoire to another for use in the target country. Thanks to the network created by the agreements on mutual representation, each collective copyright manager could offer a global portfolio of musical pieces to commercial users, but only with validity in the specific manager’s territory.
The European Commission found several problems, however. The Commission believed there was a breach of Article 101(1) of the Treaty on the Functioning of the EU, since the membership clause in the model agreement restricted the artists from choosing the collective copyright manager themselves. Moreover, the Commission disliked the exclusivity clause in the model agreement that basically provided a particular collective copyright manager with absolute protection in its own country (in other words, it prohibited any other collective copyright manager from operating in that country). The Commission also rebuked collective copyright managers for unlawfully acting in concert by mutually restricting each other’s right to grant licenses to their repertoire in the territory of the other party.
Commission’s decision confirmed, but...
The case arrived at the EU Tribunal, which confirmed the Commission’s decision, except in one respect – concerted conduct. The reason was simple. The Commission failed to present any documentary evidence. According to the Commission, the mere fact that the collective copyright managers mutually agreed to refrain from granting direct licenses to their repertoire in any country other than their own cannot be explained except by the existence of concerted conduct. However, if that is the case, the Commission had to prove that any other explanation is implausible. It failed to do this, as it did not disprove the defense used by the collective copyright managers: that is, they were not acting in concert but rather attempting to combat unauthorized use.